Citation Nr: 0502674
Decision Date: 02/03/05 Archive Date: 02/15/05
DOCKET NO. 96-21 979 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for an acquired
psychiatric disability.
2. Entitlement to an increased rating for service-connected
right ankle disability, currently evaluated as 20 percent
disabling.
3. Entitlement to a compensable evaluation for service-
connected burn scars of the right arm, currently evaluated as
0 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
WITNESSES AT HEARING ON APPEAL
Appellant, T.D.
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The veteran had active military service from May 1987 to July
1990.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of rating decisions by the Department of
Veterans Affairs (VA) Regional Office (RO) in Hartford,
Connecticut. In January 1996, the RO denied the veteran's
claim of entitlement to an increased rating for service-
connected right ankle disability, evaluated as 10 percent
disabling. In December 1999, the RO denied a claim of
entitlement to service connection for a psychiatric
condition, and denied a claim of entitlement to a compensable
evaluation for service-connected burn scars of the right arm,
evaluated as 0 percent disabling. In August 1997, December
1999 and March 2004, the Board remanded one or more of the
claims for additional development.
FINDINGS OF FACT
1. The veteran does not have an acquired psychiatric
disorder as a result of his service.
2. The veteran's right ankle disability is manifested by
pain, but not ankylosis; it is not productive of marked
interference with his employment and has not required
frequent periods of hospitalization rendering impractical the
use of the regular schedular standards.
3. The veteran's burn scar, right arm, is productive of a 16
cm. x 8 cm. scar on the undersurface of the forearm; it is
not shown to be: superficial, poorly nourished with repeated
ulceration, painful and tender on objective demonstration;
productive of functional loss; deep, or causing limited
motion, superficial and unstable, or superficial and painful
on examination, nor is it productive of a limitation of right
arm function.
CONCLUSIONS OF LAW
1. An acquired psychiatric disorder was not incurred or
aggravated during the veteran's active military service. 38
U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.303, 4.9 (2004).
2. The criteria for a rating in excess of 20 percent for a
right ankle disability have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321,
4.1, 4.7, 4.71a; Diagnostic Codes 5270-5272 (2004).
3. The criteria for a compensable evaluation for service-
connected burn scar, right arm, have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118,
Diagnostic Code 7802 (as in effect prior to August 30, 2002);
38 C.F.R. §§ 3.102, 3.159, 4.118, Diagnostic Code 7802 (as in
effect August 30, 2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA
There has been a significant change in the law with the
enactment of the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law
eliminates the concept of a well-grounded claim, redefines
the obligations of VA with respect to the duty to assist, and
supersedes the decision of the United States Court of Appeals
for Veterans Claims (Court) in Morton v. West, 12 Vet. App.
477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517
(U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding
that VA cannot assist in the development of a claim that is
not well grounded). The new law also includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
was implemented with the adoption of new regulations. See
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326a.
The VCAA requires that VA (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; and
(3) inform the claimant about the information and evidence
the claimant is expected to provide. See also Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In the present case, the
Board finds the RO has satisfied its obligations under the
VCAA.
First, VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C. §§ 5102 and 5103 (West 2002). The appellant was
notified in the RO's January 1996 and December 1999 rating
decisions that the evidence did not show that the criteria
for service connection for the claimed condition, and for
increased ratings for the claimed conditions, had been met.
Those are the key issues in this case, and the rating
decision, as well as the statements of the case (SOCs), and
the supplemental statements of the case (SSOCs) informed the
appellant of the relevant criteria. In addition, in April
2002, the RO sent the veteran a letter notifying him of his
and VA's respective duties to obtain evidence (hereinafter
"VCAA notification letter"). This letter identified the
information and evidence the RO would obtain and the
information and evidence the veteran was responsible to
provide. The Board concludes that the discussion therein
adequately informed the veteran of the information and
evidence needed to substantiate his claims, thereby meeting
the notification requirements of the VCAA. See also
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
With regard to the content of the RO's VCAA notification
letter, the Board notes that in Pelegrini v. Principi, 17
Vet. App. 412 (2004) the Court held, in part, that a VCAA
notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." The Court stated that this
new "fourth element" of the notice requirement comes from
the language of 38 C.F.R. § 3.159(b)(1).
On June 24, 2004, the Court withdrew Pelegrini I and issued
Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II)
in its stead. For purposes of the Board's VCAA analysis of
the issue on appeal, Pelegrini II did not alter Pelegrini I
in any significant respect.
In this case, in the VCAA notification letter, the veteran
was notified of the information and evidence the RO would
obtain and the information and evidence the veteran was
responsible to provide. The veteran was informed that VA
would get any VA medical records or other medical treatment
records he identified. He was further notified, "You can
help us with your claim by doing the following: tell us about
any additional information or evidence that you want us to
try and get for you." The veteran was requested to identify
all relevant treatment and to complete authorizations (VA
Forms 21-4142) for all evidence that he desired VA to attempt
to obtain. He was notified that it was still his
responsibility to support his claim with appropriate
evidence. See 38 U.S.C.A. § 5107(a) (West 2002); 38 C.F.R.
§ 3.159(c)(1-3) (2004). It therefore appears that the all
elements required for proper notice under the VCAA, to
include the "fourth element" as set forth in Pelegrini,
have been satisfied.
The Board further notes that the VCAA notification letter was
sent to the veteran after the RO's decisions that are the
basis for this appeal. In this case, however, the
unfavorable RO decisions that are the basis of this appeal
were decided prior to the enactment of the VCAA. In such
cases, there is no error in not providing notice specifically
complying with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b)(1) because an initial AOJ adjudication had already
occurred. Id. Rather, the appellant is to be given proper
subsequent VA process, and the Board is to make findings on
the completeness of the record or on other facts permitting
the Court to make a conclusion of lack of prejudice from
improper notice. Id.
In this case, the April 2002 letter was provided by the AOJ
prior to the transfer and certification of the appellant's
case to the Board, and the content of the letter fully
complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b). In addition, after the April 2002
letter was sent, the case was readjudicated and in June 2003
and July 2004, Supplemental Statements of the Case were
provided to the appellant. In summary, the claimant has been
provided with every opportunity to submit evidence and
argument in support of his claims, and to respond to VA
notice.
The VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claims. The Board is
satisfied that its duty has been met and that all reasonable
efforts to develop the record have been made. The claims
files include the veteran's service medical records, and VA
and non-VA medical reports. The veteran has been afforded
examinations covering the claimed conditions. The Board
concludes, therefore, that decisions on the merits at this
time do not violate the VCAA, nor prejudice the appellant
under Bernard v. Brown, 4 Vet. App. 384 (1993).
Based on the foregoing, the Board finds that the veteran has
not been prejudiced by a failure of VA in its duty to assist,
and that any violation of the duty to assist could be no more
than harmless error. See Conway v. Principi, 353 F.3d 1369
(Fed. Cir. 2004).
II. Service Connection
The veteran argues that service connection is warranted for
an acquired psychiatric disorder. He argues that he began
suffering from a great deal of anger during service.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection
may also be granted on the basis of a post-service initial
diagnosis of a disease, where the physician relates the
current condition to the period of service. See 38 C.F.R. §
3.303(d). In such instances, a grant of service connection
is warranted only when, "all of the evidence, including that
pertinent to service, establishes that the disease was
incurred during service." Id.
Personality disorders are not diseases or injuries in the
meaning of applicable legislation for disability compensation
purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2004); Winn v. Brown,
8 Vet. App. 510, 516 (1996), Beno v. Principi, 3 Vet. App.
439 (1992).
The law and regulations provide that compensation shall not
be paid if the disability was the result of the person's own
willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A.
§§ 105, 1131 (West 2002); 38 C.F.R. §§ 3.1(n), 3.301(c)
(2004). With respect to alcohol and drug abuse, Section 8052
of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub.
L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits,
effective for claims filed after October 31, 1990, payment of
compensation for a disability that is a result of a veteran's
own alcohol or drug abuse. Moreover, § 8052 also amended 38
U.S.C. § 105(a) to provide that, with respect to claims filed
after October 31, 1990, an injury or disease incurred during
active service will not be deemed to have been incurred in
the line of duty if the injury or disease was a result of the
person's own willful misconduct, including abuse of alcohol
or drugs. See 38 U.S.C.A. § 105 (West 2002); 38 C.F.R. §§
3.1(n), 3.301 (2004).
As used herein, the term "acquired psychiatric disorder"
means a psychiatric disorder that is not a personality
disorder, and not an alcohol or drug dependency condition.
The veteran's service medical records show that in January
1990, he sought treatment for complaints of difficulty
controlling his anger, and assaulting others. He was noted
to have undergone a court martial for assault with a weapon
(bottle) after a fight in the enlisted club, and to have
spent 75 days in the brig. He reported that he had assaulted
his girlfriend the week before, and had been drinking
episodically. He was recommended for administrative
discharge. The diagnosis was personality disorder, passive
aggressive type. In June 1990, he sought a "follow-up
psychiatric evaluation secondary to feelings concerning break
up with his fiancé which he does not wish to discuss with me
further." The veteran's separation examination report,
dated in July 1990, shows that his psychiatric system was
clinically evaluated as normal. In an accompanying "report
of medical history" the veteran denied having had "nervous
trouble of any sort" and "depression or excessive worry."
The post-service medical evidence consists of VA and non-VA
treatment and examination reports, dated between 1990 and
2004 (all of the relevant medical evidence discussed below is
from VA).
A February 1999 treatment report contains a diagnosis of
adjustment disorder with depressed mood, and rule out major
depressive disorder. The report shows that he denied any
previous psychiatric history, and that he complained of
difficultly sleeping due to problems at his workplace.
A September 1999 treatment report contains identical
diagnoses as the February 1999 report cited above, and also
shows complaints of trouble in the workplace, as well as the
veteran's report that he had filed a grievance and a
complaint against his employer.
A November 2000 report contains Axis I diagnoses of
adjustment disorder with depressed mood, rule out major
depressive disorder, and alcohol abuse. The assessment
notes, "Patient with a history of a past depressive episode
in the context of interpersonal difficulties at his workplace
with brief treatment now present with recurrent depressive
symptoms as a result of impending divorce. Although patient
has a family history of depression, his depressive symptoms
seem to emanate from interpersonal problems that seem to
suggest a personality disorder. Excessive use of alcohol may
also contribute to his depressive symptoms."
Reports, dated in June 2002, show that the veteran requested
treatment for cocaine and marijuana abuse. He complained
that his marriage was falling apart, and he attributed this
to his substance abuse. The Axis I diagnoses were cocaine
abuse, MJ (marijuana) abuse, history of alcohol abuse, and
rule out adjustment disorder with depressed mood.
A VA examination report, dated in June 2004, shows that the
examiner determined that the veteran did not have an Axis I
diagnosis, and that he has an antisocial personality
disorder.
The Board finds that the June 2004 VA examination report is
highly probative evidence showing that the veteran does not
currently have a compensable acquired psychiatric disorder.
This report is the only diagnosis of record shown to have
been based on a review of the veteran's claims files; it is
also based on an examination, the veteran's subjective
history, and it is accompanied by a rationalized explanation.
The Board further points out that its conclusion that the
veteran does not have an acquired psychiatric disorder is
consistent with the November 2000 report, in which the
examiner stated that the veteran's depressive symptoms "seem
to emanate from interpersonal problems that seem to suggest a
personality disorder." Given the foregoing, the veteran has
failed to satisfy the initial element of a service-connection
claim. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998)
(holding that under 38 U.S.C.A. §§ 1110 and 1131, an
appellant must submit proof of a presently existing
disability resulting from service in order to merit an award
of compensation).
In addition, the Board points out that, even assuming
arguendo that an acquired psychiatric disorder was shown, the
claims files do not contain any competent evidence showing
that an acquired psychiatric disorder is related to service.
In this regard, all of the treatment reports showing
complaints of psychiatric symptoms are mentioned in
association with the veteran's complaints of family and work
difficulties, and/or substance abuse. The first post-service
evidence of a diagnosed compensable acquired psychiatric
disorder is found in 1999; this is approximately nine years
after separation from service. This lengthy period without
treatment is evidence that there has not been a continuity of
symptomatology, and it weighs heavily against the claim. See
Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In light of
the evidence and based on this analysis, it is the
determination of the Board that the preponderance of the
evidence is against the claim of service connection for an
acquired psychiatric disorder.
The Board has considered the appellant's written and oral
testimony submitted in support of his claim. His statements
are not competent evidence of a diagnosis, or a nexus between
the claimed condition and his service. Although lay evidence
is acceptable to prove the occurrence of an injury during
active duty or symptomatology over a period of time when such
symptomatology is within the purview of or may be readily
recognized by lay persons, lay testimony is not competent to
prove a matter requiring medical expertise, such as an
opinion as to diagnosis or medical causation. See Espiritu
v. Derwinski, 2 Vet. App. 492, 494-495 (1992). Accordingly,
the appellant's claim must be denied.
III. Increased Ratings
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A. §
1155; 38 C.F.R. § Part 4. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7.
Under the laws administered by VA, disability ratings are
determined by applying the criteria set forth in VA's
Schedule for Rating Disabilities, which is based on the
average impairment of earning capacity. Individual
disabilities are assigned separate diagnostic codes. See 38
U.S.C.A. § 1155; 38 C.F.R. § 4.1.
In every instance where the schedule does not provide a zero
percent evaluation for a diagnostic code, a zero percent
evaluation shall be assigned when the requirements for a
compensable evaluation are not met. 38 C.F.R. § 4.31 (2004).
It is essential, in determining the level of current
impairment, that the disability be considered in the context
of the entire recorded history. See 38 C.F.R. § 4.1 (2004).
When a question arises as to which of two ratings apply under
a particular diagnostic code, the higher evaluation is
assigned if the disability more nearly approximates the
criteria for the higher rating; otherwise, the lower rating
will be assigned. See 38 C.F.R. § 4.7 (2004).
A. Right Ankle Disability
As for the history of this disability, see 38 C.F.R. § 4.1
(2004), the veteran's service medical records show that
beginning in late 1989, he received treatment for right ankle
pain, with several notations of "recurrent right ankle
sprain." There was X-ray evidence of ligament
calcification. A post-service VA examination report, dated
in October 1990, contains an impression of post-traumatic
changes of right ankle, with limited range of motion. X-rays
revealed a bony spur at the talus, as well as joint space
narrowing at the tibiotalar joint, and the results were
thought to be consistent with osteoarthritis of the ankle. A
VA operative report, dated in June 1994, shows that the
veteran underwent excision and debridement of a right talar
osteophyte. An August 1996 VA examination report noted that
the operation had been unsuccessful in that it had not
removed the entire osteophyte, and that the veteran still had
pain and swelling.
In November 1990, the RO granted service connection for
recurrent right ankle sprains with post-traumatic changes and
moderate limitation of motion, evaluated as 10 percent
disabling. In July 1994, the veteran filed a claim for an
increased rating. In January 1996, the RO denied the claim,
and the veteran appealed. In September 2000, the RO
increased the veteran's evaluation to 20 percent. Based on
the date of receipt of the veteran's claim, the RO assigned
an effective date of August 1, 1994 for the 20 percent
rating. See 38 C.F.R. § 3.31 (2004). However, since this
increase did not constitute a full grant of the benefit
sought, the increased rating issue remains in appellate
status. AB v. Brown, 6 Vet. App. 35, 39 (1993).
The standardized description of joint measurements is
provided in Plate II under 38 C.F.R. § 4.71. Normal
dorsiflexion of the ankle is from 0 to 20 degrees. Normal
plantar flexion of the ankle is from 0 to 45 degrees.
VA outpatient treatment reports note treatment for right
ankle pain in late 1998, February 1999 and January 2000, with
notations of tibiotalar joint DJD (degenerative joint
disease). The February 1999 report notes decreased
dorsiflexion and 5/5 strength. The January 2000 report notes
that the veteran was offered fusion. On examination, there
was a full range of motion, and 5/5 strength.
A December 1997 VA examination report shows that the veteran
complained of right ankle pain, and that he wore a brace. On
examination, the right ankle had dorsiflexion to 90 degrees,
and flexion to 0 degrees, inversion to 40 degrees, and
eversion to five degrees. There was no evidence of gait
abnormality.
A December 1998 VA joints examination shows that the right
ankle had flexion to 140 degrees, dorsiflexion to 90 degrees,
eversion to 22 degrees, and inversion to 20 degrees.
A February 2000 VA joints examination indicates that the
veteran wore a brace and used a cane. On examination,
dorsiflexion was to 90 degrees, and could not be maintained
for more than eight seconds due to pain. Flexion was
described as "normal." Eversion was to 12 degrees and
inversion to 14 degrees, both with pain. Muscle strength was
3/5. The assessment noted significant arthritis at the right
ankle with severe pain on weight-bearing. A patella-tendon
weight-bearing brace was indicated, and the report notes
significantly limited functional ability upon repetitive use.
A March 2004 VA joints examination report shows that the
veteran was not wearing a brace, and had not brought his
brace to the examination. He was not using a cane, and
stated that he only used a cane, "In bad weather and when
requiring longer distances for social walking." He was
noted to work at a desk job and to work out at a gym using an
exercise bike and lifting free weights with his upper
extremities. On examination, the right ankle had extension
to 0 degrees and flexion to 35 degrees. Passive eversion was
to 20 degrees and inversion was to 10 degrees. During the
exam, there was no demonstration of inability to perform
normal working movements with normal speed, strength,
coordination and endurance. Resistance and guarding altered
results. The right ankle was described as stable in relation
to the findings in the September 2000 VA examination report.
The examiner noted that there was "mild intermittent
functional impairment." There was no evidence of edema,
weakness, instability," and there were no limitations
standing or walking or abnormal weight bearing. The examiner
further noted that the veteran's condition does not impair
his occupation. Following completion of the examination, the
veteran "demonstrated a light-footed nimble agile gait that
was symmetric as he walked away." There was no limping or
favoring of the right leg. The impressions were no acute
osseous injury to the right ankle, and old fracture deformity
of the medial malleolus of the right ankle.
The veteran's right ankle disability has been evaluated under
38 C.F.R. § 4.71a, Diagnostic Code (DC) 5271 (2004)
(disability of the ankle manifested by limited motion).
Under DC 5271, a 20 percent rating is warranted for "marked"
limitation of motion.
The 20 percent rating is the maximum rating allowed under DC
5271. As for the possibility of a higher rating under
another diagnostic code, see Schafrath v. Derwinski, 1 Vet.
App. 589 (1991), under 38 C.F.R. § 4.71a, DC 5272 (2004),
ankle, ankylosis of: In plantar flexion at more than 40
degrees, or in dorsiflexion at more than 10 degrees or with
abduction, adduction, inversion or eversion deformity,
warrants a 40 percent evaluation. However, the medical
evidence does not show that the veteran's right ankle is
ankylosed. Thus, there is no basis for the assignment of a
higher evaluation under Diagnostic Code 5272.
In evaluating musculoskeletal disabilities, the Board must
assess functional impairment and determine the extent to
which a service connected disability adversely affects the
ability of the body to function under the ordinary conditions
of daily life, including employment. 38 C.F.R. § 4.10
(2003). Ratings based on limitation of motion do not subsume
the various rating factors in 38 C.F.R. §§ 4.40 and 4.45,
which include pain, more motion than normal, less motion than
normal, incoordination, weakness, and fatigability. These
regulations, and the prohibition against pyramiding in 38
C.F.R. § 4.14, do not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use, including flare-ups. DeLuca v. Brown, 8 Vet. App. 202,
206- 08 (1995). In other words, when rated for limitation of
motion, a higher rating may be assigned if there is
additional limitation of motion from pain or limited motion
on repeated use of the joint. A finding of functional loss
due to pain must be "supported by adequate pathology and
evidenced by the visible behavior of the claimant." 38 C.F.R.
§ 4.40 (2003). In this case, there is no evidence to suggest
that functional impairment is beyond that contemplated by the
current 20 percent rating. In fact, the latest examination
tended to show only mild functional impairment.
Finally, the Board has considered the provisions of 38 C.F.R.
§ 3.321(b)(1) (2004), which state that when the disability
picture is so exceptional or unusual that the normal
provisions of the rating schedule would not adequately
compensate the veteran for his service-connected
disabilities, an extraschedular evaluation will be assigned.
To this end, the Board notes that neither frequent
hospitalization nor marked interference with employment due
to the veteran's service-connected right ankle disability is
demonstrated, nor is there any other evidence that this
condition involves such disability that an extraschedular
rating would be warranted under the provisions of 38 C.F.R. §
3.321(b)(1). In making this determination, the Board notes
that it has paid particular attention to the veteran's
testimony as well as the medical evidence and does not find
that the veteran's right ankle disability causes a marked
interference with the veteran's employment.
B. Burn Scar, Right Arm
As for the history of this disability, see 38 C.F.R. § 4.1,
records from the Beth Israel Hospital, dated in April 1990,
show that the veteran sustained a burn to his right arm from
his thumb to axilla after he opened the hood of a car and was
splashed by anti-freeze.
In November 1990, the RO granted service connection for burn
scar, right arm, evaluated as 0 percent disabling
(noncompensable). In August 1999, the veteran filed a claim
for a compensable rating. In December 1999, the RO denied
the claim, and the veteran appealed.
The veteran's burn scar, right arm, has been evaluated as
noncompensable under 38 C.F.R. § 4.71a, Diagnostic Code (DC)
7802 (2004). Under DC 7802, a 10 percent rating is warranted
for scars, burns, second degree: Areas or areas approximating
1 square foot (0.1 m. squared).
A VA outpatient treatment report, dated in December 1999,
shows complaints of right forearm itching. On examination of
the right ventral forearm there was a hyperpigmented patch
with perifollicular hyperpigmented macules within. There
were no lichenification or excoriations. The assessment was
pruritis in old scar, with no evidence of infection. The
veteran was given a camphor/menthol medication.
A September 1999 VA scar examination report shows that the
veteran complained of slight swelling and itch of the right
arm. On examination, there was an 18 centimeter (cm.) x 3
cm. oval scar on the right flexor surface of the forearm.
There was no tenderness, adherence, ulcerations, or breakdown
of the skin. There was no underlying tissue loss. The scar
was not elevated or depressed. There was slight edema, but
no inflammation or keloid formation. There was no
disfigurement. There was no limitation of function due to
the scar. The diagnosis was pruritis and hyperpigmentation
at old scar site.
A December 2002 VA scar examination report shows that the
veteran complained of itching and scales at the scar site
during the summertime. He denied pain. He denied any work-
related problems as to the scar. On examination, there was a
16 cm. x 8 cm. area on the undersurface of the forearm. The
area was smooth, nontender, and without ulcers, skin
breakdown, keloid, or edema. The assessment was right
forearm scar due to old second degree burn with no functional
limitations from scar, and "current impairment includes some
hyperpigmented areas and intermittent scaley and itchy
skin."
The Board finds that a compensable rating is not warranted
under DC 7802, as there is no evidence to show that his burn
scar, right arm, is productive of an areas or areas
approximating 1 square foot (0.1 m. squared). Accordingly,
the claim must be denied.
As for the possibility of a higher rating under another
diagnostic code, Schafrath, under 38 C.F.R. § 4.118, DC's
7803 and 7804 (as in effect prior to August 30, 2002), a 10
percent evaluation is warranted for superficial, poorly
nourished scars with repeated ulceration, or scars which are
shown to painful and tender on objective demonstration.
Under 38 C.F.R. § 4.118, DC 7805 (as in effect prior to
August 30, 2002), other scars will be rated on limitation of
function of the part affected.
In this case, a compensable rating is not warranted, as the
evidence does not show that the veteran's right arm scar is
poorly nourished with repeated ulceration, or shown to be
painful and tender on objective demonstration, or that the
veteran has functional loss that is residual to any right arm
scarring. Accordingly, a compensable rating is not warranted
pursuant to Diagnostic Codes 7803, 7804 or 7805 (as in effect
prior to August 30, 2002).
Finally, effective August 30, 2002, VA revised the rating
schedule for evaluating skin disabilities. 38 C.F.R. § 4.118
(2003). Under DC 7801 (as in effect August 30, 2002), scars,
other than head, face, or neck, that are deep or that cause
limited motion, warrant a 10 percent evaluation for: Area or
areas exceeding 6 square inches (39 sq. cm.). Under DC 7802
(as in effect August 30, 2002), a 10 percent rating is
warranted for: scars, other than head, face, or neck, that
are superficial and that do not cause limited motion: Area or
areas of 144 square inches (929 sq. cm.) or greater. Under
DC 7803 (as in effect August 30, 2002), a 10 percent rating
is warranted for: scars, superficial, unstable. Under DC
7804 (as in effect August 30, 2002), a 10 percent rating is
warranted for: scars, superficial, painful on examination.
Under DC 7805 (as in effect August 30, 2002), scars, other,
will be rated based on limitation of function of affected
part.
The notes pertaining to these regulations (re-numbered) are
shown below:
(1) Scars in widely separated areas, as on two or more
extremities or on anterior and posterior surfaces of
extremities or trunk, will be separately rated and combined
in accordance with § 4.25 of this part.
(2) A deep scar is one associated with underlying soft tissue
damage.
(3) A superficial scar is one not associated with underlying
soft tissue damage.
(4) An unstable scar is one where, for any reason, there is
frequent loss of covering of skin over the scar.
The Board must apply only the earlier version of the
regulation for the period prior to the effective date of
change. See 38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC 3-
2000, 65 Fed. Reg. 33,421 (2000).
The evidence does not show that the veteran's burn scar,
right arm is deep or that it causes limited motion, (see DC
7801), that it has an area or areas of 144 square inches (929
sq. cm.) or greater (see DC 7802), that it is unstable (see
DC 7803), that it is painful on examination (see DC 7804), or
that it limits right arm function (see DC 7805).
Accordingly, a compensable rating is not warranted pursuant
to Diagnostic Codes 7803, 7804 or 7805 (as in effect August
30, 2002).
In summary, a compensable rating is not warranted under
either the old or the revised regulations, and the claim is
denied.
IV. Conclusion
As the preponderance of the evidence is against the claims,
the benefit of the doubt doctrine is not applicable, and the
claims must be denied. 38 U.S.C.A. § 5107 (West 2001);
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for an acquired psychiatric disorder is
denied.
A rating in excess of 20 percent for a right ankle disorder
is denied.
A compensable rating for burn scar, right arm, is denied.
____________________________________________
C. W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs